Chief Justice Warren E. Burger: We’ll hear arguments next in Number 71-6481, Davis against the United States.

Mr. Wulf, you may proceed whenever you are ready.

Mr. Melvin L. Wulf: Mr. Chief Justice, may it please the Court.

Now, this case which is here on the petition for certiorari from the United States Court of Appeals for the Fifth Circuit, presents the question whether petitioner who is a Negro may challenge the exclusion of Blacks from the federal grand jury which indicted him in a post conviction proceeding where the claim was not made before trial.

It deals with the scope of Section 2255, the equivalent of habeas corpus for federal prisoners.

The facts are that petitioner, who is Black, was indicted for bank robbery in the Northern District of Mississippi in January, 1968.

His court appointed counsel appeared with him for arraignment several weeks afterwards and was given 30 days for motions.

On March 6, the motions were filed, including a motion to quash the indictment, but only on the ground that the arrest which led to his indictment was illegal.

That motion was denied.

The case went to trial.

The petitioner was convicted by the jury and sentenced to 14 years in jail.

Justice Potter Stewart: Was it a trial of him alone, I notice there were two others indicted?

Mr. Melvin L. Wulf: There were two others, they were separately charged Your Honor, they were separate.

Justice Potter Stewart: So this trial was of him alone?

Mr. Melvin L. Wulf: Yes sir.

Justice Potter Stewart: Thank you.

Mr. Melvin L. Wulf: He was sentenced to 14 years and the conviction was affirmed on appeal by the Fifth Circuit.

And although it's not in the record, I do want to point out that Davis was released on parole last August after serving three years and eleven months of his sentence.

In January 1971, Davis filed a motion under Section 2255 alleging that Negroes were systematically excluded from the grand jury which had handed down the indictment against him.

And he specifically rested on the Fifth and Sixth Amendments and the relevant statutes in Title 28, which were then applied.

He also alleged that his attorney in fact had made such a motion, but as appears from the opinions, both of the District Court and the Court of Appeals, that does not appear in the printed record, but I’ll return to that claim later on, it's not terribly important at this stage.

At the same time that Davis --

Justice Harry A. Blackmun: Mr. Wulf, in as much as he professes to have made that objection, then I take it you must concede that he knew he had the right to object to the composition of the grand jury before trial?

Mr. Melvin L. Wulf: Well, all I would concede about his claim that he made it is that he didn’t intend to waive it, and it might also imply that he knew he had the right to make it.

But what would have to be gone into at the hearing on remand, if there is a hearing on remand, would be, what reasons, if any, his lawyer did not raise that if Davis had in fact wanted him to raise it.

But that is an issue that would really have to be canvassed and would go to the whole waiver problem, which is the central issue in the case.

At the same time that he filed this 2255 motion, Davis also filed a motion for a discovery and inspection of facts relating to the claim of exclusion of Blacks from the jury selection system in the Northern District of California; both for the year 1968 and for the 20 years preceded.

The reply by the government was in effect a general denial which pointed out that he had not raised it before trial as extensively required by Rule 12 (b) (2) of the Federal Rules of Criminal procedure and also denied that any exclusion was practiced in the district.

The District Court, without granting Davis a hearing, dismissed, writing an opinion saying that his having failed to raise it prior to trial as required by 12 (b) (2) and adhering to Shotwell that he had waived the claim.

He also concluded that in the language of the Rule, there was no cause shown to grant relief from the waiver and he had made this finding also without having granted any hearing.

The case -- the decision of the District Court was affirmed by the Sixth Circuit in a very brief per curiam opinion, it too relied on Shotwell versus the United States and its construction of 12 (b) (2).

Justice Byron R. White: Would you make any allegations as to why it wasn’t waived?

Mr. Melvin L. Wulf: What he said was a pro se petition Your Honor.

What he said was that it had been raised, he alleged that in the petition.

He said that the -- his court appointed attorney had made an oral motion before trial.

But the District Court searched the record, read the transcripts, said it couldn’t find any reference to that claim having been raised, and it is at this point a disputed claim, a fact, which the District Court, as I say, found on the basis of his own recollection and on the review of the transcript.

Justice Byron R. White: Would you say that in a habeas corpus petition or 2255 petition, we should make some -- if it -- then you should make some allegations that I didn’t -- either that I didn’t know or even if I knew there were -- there was a reason for not raising it, so that you can create some -- for having a hearing?

Mr. Melvin L. Wulf: If those were the facts.

He said that it had been raised, which certainly leads to the implication that he intended it to be raised and did not intend for it to be waived.

Justice Byron R. White: That’s all was alleged, that was it raised and the Court determines on the basis of the record that there's no real issue of the fact, why should there be a hearing?

Mr. Melvin L. Wulf: He also claimed Your Honor that he’d -- that had -- that he did not waive it in the motion.

Justice Byron R. White: As he claimed that -- so now you move to another issue and says, I did not waive it.

Mr. Melvin L. Wulf: Yes.

Justice Byron R. White: Don’t you suppose that he should say that why he didn’t raise it?

Whose burden is it to show that the presence or lack of deliberate language?

Mr. Melvin L. Wulf: I think the original burden is on the government Your Honor and then --

Justice Byron R. White: Well, I thought it is 2255 petition --

Mr. Melvin L. Wulf: Well, initially it’s on the shoulders of the petitioner.

Justice Byron R. White: He didn’t even allege it.

Mr. Melvin L. Wulf: Well.

he did, if I may --

Justice Byron R. White: He did not claim it.

He didn’t say why, (Inaudible) say why he didn’t --

Mr. Melvin L. Wulf: No, he did not say why, but it’s ambiguous of course because although he said he didn’t waive it, he supported that by saying that not only had he not waived it, but his lawyer had in fact raised it.

But whether or not it can be proved that his lawyer raised it, there has to be a hearing on the question of waiver, because that is always a factual question.

It may be that his lawyer will, at the hearing, testify -- well, he could testify that he didn’t raise it in which case I think we might still have some trouble with the application 12 (b) (2), because even according to Davis he didn’t raise it before a trial, he raised it after the motions were to be filed.

But he could either testify that he raised it, speaking of the lawyer, or that he couldn’t remember whether or not it had been raised or that he hadn’t raised it and then could himself testify about what kind of conversations, if any, if he had with Davis about the issue of jury exclusion, but these all require a hearing.

Justice Byron R. White: Now, I take it then you are saying, either are you in any position or willing to say that this (Inaudible) if he didn’t waive it, why he didn’t?

But I don’t think that pro se petitions have to be held to a high order pleading in these cases, that if they make a colorable showing by a constitutional claim and alleged in general terms -- even if they don't use the word waiver, even if they said it wasn’t raised, I would think that, that should be adequate for purposes of habeas review.

Justice Byron R. White: What if the -- what if it -- assume that the (Inaudible) represented by counsel and counsel knew what the rule was and did not raise it, assume that, (Inaudible)?

Mr. Melvin L. Wulf: Again, given the fact that --

Justice Byron R. White: Do you have to say automatically a hearing?

Mr. Melvin L. Wulf: Yes.

Yes sir, I would.

Justice Byron R. White: You would have to, to maintain it.

Mr. Melvin L. Wulf: Well, I think as a matter of fact one would have to.

Again, if one isn’t going to hold the petitioner, a pro se petitioner to a high order of pleading, I think that on a colorable case, it's more or less something like a prima facie case, that particularly where an important constitutional right such as exclusion from juries is concerned that the -- that a district court should hold a hearing and first deal of course with the question -- factual question of waiver and go into the question in order to complete the summary allegations that are made in the complaint.

But I think it always has to be a factual question, and I think it's a factual question which demands a hearing.

I suppose there are some cases where it might appear on -- in the pleadings themselves that if he said, I discussed with my attorney and we agree that as a strategic matter we were not going to raise it now, because I wanted to save it for a post-conviction proceeding, that he wouldn’t -- that the judge wouldn’t have to hold a hearing in that case.

But that may be the only case that I can think of.

Justice Byron R. White: You would say that in a criminal trial or a civil trial, if you don’t demand a jury that you can later say, I didn't intend a waiver except for a hearing, even though you know perfectly well that (Inaudible) given to you?

Mr. Melvin L. Wulf: I think that there would have to be a factual question on the waiver there, yes sir.

But I would think that -- that would appear -- I would think that, that would appear on the record, on the face of the record.

Justice Byron R. White: So it doesn’t make any difference if the rule says and you know about it, but if you don’t make the demand if you indeed waive?

Mr. Melvin L. Wulf: No.

Well, that’s what 12 (b) (2) says of course.

Justice Byron R. White: Exactly.

Mr. Melvin L. Wulf: That’s right.

Justice Byron R. White: Doesn’t make any difference, even though you know that and you know that you don’t raise --

Mr. Melvin L. Wulf: Even though you knew it, yes sir.

Chief Justice Warren E. Burger: How do you distinguish that from the hypothetical that you posed of the man who decides as a matter of tactics, he decided not to raise it but save it.

Could you distinguish that from the one that Justice White said?

Mr. Melvin L. Wulf: Well, because the man, in responding to Justice White’s questioned, the defendant himself might know about it, but his lawyer might without consultation waive it, without consulting with the defendant, and if he does not consult with the defendant and get his explicit agreement to the waiver, certainly of a very important constitutional right, certainly one of the dimension involved in this case, I think that the question of waiver is still a live question on a post-conviction procedure.

Justice Thurgood Marshall: What good is the rule?

Mr. Melvin L. Wulf: The rule serves the purpose of --

Justice Thurgood Marshall: I mean, under your hypothesis, what good is the rule?

Mr. Melvin L. Wulf: Well, the rule serves the purpose of encouraging defense counsel to discuss the issue with their client, that’s the purpose it serves.

It encourages these claims being raised before a trial so that the trial can proceed in orderly way.

And if this case is reversed, I would think that that would be notice to all attorneys where there's a possible question of exclusion of Blacks from the jury that they better discuss it first with their clients.

Justice Harry A. Blackmun: And what do you do --

Justice Thurgood Marshall: Do you think that the other attorneys will read our decision rather than read the rule, they haven’t read the rule yet?

Mr. Melvin L. Wulf: Well, we could only hope they read the decisions Your Honor.

I don’t know how to deal with that problem with lawyers who don’t read the law.

Justice Thurgood Marshall: I understand that your position is that the defendant knows what the rule is, the lawyer knows what the rule is, and if they fail to communicate together, they have an automatic 2255.

Mr. Melvin L. Wulf: If they don't communicate and if the lawyer does not secure the explicit waiver of the defendant on that claim, yes sir.

Justice Thurgood Marshall: Automatically?

Mr. Melvin L. Wulf: Automatically, I think so.

I can’t see any other alternative, because according to the decision by this Court in Noia and in Kaufman which apply, Noia to federal defendants and taking into account also Humphrey v. Cady last term, which made it explicit that lawyers have to consult on some issues with their clients in order to affect a effective waiver.

There are some issues where the lawyer is going to have to talk to his client once in a while and get an explicit understanding with him, that he is waiving a substantial constitutional right for whatever the purpose may be.

Justice Thurgood Marshall: In this case, did he allege that lawyer didn't talk to him?

Mr. Melvin L. Wulf: No, in this case he alleged that the lawyer made the motion in fact.

Justice Thurgood Marshall: But he didn't allege that the lawyer didn’t talk to him?

Mr. Melvin L. Wulf: No, it would be inconsistent to allege that -- well, it wouldn't necessarily be inconsistent, it’s the -- the motion is silent, the record is silent about the extent of their conversation.

In any case, our argument in summary rests upon two cases decided by this Court, Kaufman versus United States and Noia v. Fay, which together hold that federal defendants in 2255 actions may raise constitutional issues in post-conviction proceedings to the exact same extent that state prisoners may do under federal habeas corpus and that both are qualified only by the rule of waiver that’s been enunciated in Noia.

Secondly, we distinguish Shotwell versus United States as not having application in this case.

And third, we argue that 12 (b) (2) must be construed in waiver terms to follow the decision by this Court in Noia.

And that, that can be done easily without, as the government suggests, holding 12 (b) (2) unconstitutional, because 12 (b) (2) in fact uses the term waiver, and in addition allows the district court to allow a motion to be filed late with just -- with good cause.

And our position essentially, it certainly rejects the government’s suggestion that 12 (b) (2) has to be held unconstitutional.

It doesn’t have to be held unconstitutional.

It merely has to be construed consonantly with the decision in Noia regarding the -- regarding waiver.

Justice Byron R. White: Do you view the issue here about challenging the grand jury differently from the issue in Henry against Mississippi insofar as a necessity consultant for the defendant is concerned?

Do you think a lawyer has to consult the defendant about everything before he can waive it, before the defendant is bound by the lawyer’s decision?

Mr. Melvin L. Wulf: Well, according to Henry and according to Humphrey v. Cady, I think that this Court has told lawyers that they certainly have to consult with their clients about substantial constitutional issues.

Justice Byron R. White: Well, it was of substantial constitutional issue in the Humphrey, wasn't it?

Mr. Melvin L. Wulf: Yes.

Justice Byron R. White: Well, what did the Court say there?

Mr. Melvin L. Wulf: It said that the lawyer had a consultant that he hadn’t -- and since they haven’t consulted, they haven’t waived.

Justice Byron R. White: Oh!

What -- didn’t we sent it back to see if they knew about it, knew about the rule?

Mr. Melvin L. Wulf: Well, as I recall Henry, Henry said that there had to be an explicit finding of waiver by the defendant.

Justice Byron R. White: What constitutes a waiver, and what constituted a waiver in Henry?

What might constitute a waiver in Henry, knowledge and failure to object or what?

Mr. Melvin L. Wulf: No, I would think that there would be knowledge and failure to object in consultation with the defendant.

Justice Byron R. White: Yes.

Thank you.

Mr. Melvin L. Wulf: I mean, that’s -- obviously, obviously it’s a hard -- it’s a -- might be a burden on defense counsel, but where fundamental and substantial constitutional rights are concerned it may be a burden that has to be imposed in order to vindicate the constitutional rights of defendants in criminal cases.

We think that this claim is certainly well within the scope of the kind of claims that this Court said in Kaufman have to be entertained by District Courts on Section 2255 cases.

That what's at stake is the vindication of constitutional rights and certainly the constitutional right which is asserted in this case is one that this Court has required to be vindicated for at least a hundred years.

It is an elementary right and the courts never, never swerve from its consistent position that the exclusion of minority groups from Juries is a violation of the constitution in state cases or in federal cases.

And if the defendant in this case is prevented, because of this procedural default, this asserted procedural default from raising this elementary constitutional claim then I think that the Court will be retreating from this 100-year course of decisions, which have made the jury exclusion issue a primary constitutional issue.

As far as Shotwell is concerned --

Justice Potter Stewart: There is nothing new about the idea that in order to preserve an error for appellate or even collateral review you have to raise it in a timely manner, that's I would guess certainly as old as a substantive rule that you can refer to, isn’t it, as a doctrine in this Court?

Mr. Melvin L. Wulf: Yes, but there's a whole course of decisions from this Court beginning with Noia and including Kaufman and Noia itself there, although that wasn't a procedural default at trial, that was a default in appeal which cut him off from state remedies.

But there are some -- and one doesn’t encourage procedural defaults obviously, but one does say that where important constitutional rights of defendants are concerned, and this Court has said it in Noia and said it in Kaufman, that there has to be a forum made available for his federal rights to be vindicated if he didn’t have an opportunity to have them heard and assessed in the trial court.

Justice Potter Stewart: Well, certainly there was an opportunity, at least theoretically?

Mr. Melvin L. Wulf: There always is.

Justice Potter Stewart: Yes.

Mr. Melvin L. Wulf: There's always an opportunity for --

Justice Potter Stewart: But I mean a specific opportunity given by the rule.

Mr. Melvin L. Wulf: But there's a specific opportunity for a counsel to raise all constitutional objections all along the course of trial.

Justice Potter Stewart: And if he doesn’t do it, it’s a -- it’s just common ground.

It’s just a run of the mill, jurisprudence to this Court.

If he doesn’t raise it in a timely manner, he has lost it.

Mr. Melvin L. Wulf: Well, not where a constitutional rights are concerned.

I mean, they were raised to trial, but they were not pursued on appeal.

And it seems to me that, that was -- the Noia discussion revolved entirely around the question of procedural default, and in that case there had to be a default because of failure to appeal, but default at trial seems to be no different to me, that a -- the defendant -- a defendant oughtn't to be held to have forfeited an important constitutional right because of a decision by his lawyer in which he did not join, that’s what it comes to.

And procedural defaults ought not to be allowed to be the basis for loss of constitutional rights.

Justice Potter Stewart: Well, they are, every term of this Court, as you know?

Mr. Melvin L. Wulf: But they weren’t in Kaufman, they weren’t in --

Justice Potter Stewart: No, they weren’t in those two cases but it’s a --

Mr. Melvin L. Wulf: Well, I can only -- I rely on those two cases obviously, and I also rely on the claim that constitutional rights are too important to be forfeited simply because --

Justice Byron R. White: Well, Mr. Wulf, would you say that the lawyer and client consulted and they both agreed that well we’d rather save this for a federal habeas?

Justice Byron R. White: But do you think they should allege that in a habeas corpus petition rather than burden some Federal Court with having a hearing in every case just to find out what the reason is?

Mr. Melvin L. Wulf: I think if it’s a pro se petition and that, that --

Justice Byron R. White: But you concede there are some reasons that are no good and other reasons that are fine, don’t you?

Mr. Melvin L. Wulf: Surely, if I were to join the --

Justice Byron R. White: Well, why don’t you say one reason then?

Mr. Melvin L. Wulf: If I was -- If I were to join the petition Your Honor I would like to think that I would plead what the reason was, but Davis drew his own petition, as do so many post-conviction petitioners, and if they're going to be held to the fine art of pleading as lawyers can properly be, they're going to be out of court all the time.

Justice Byron R. White: Why wouldn’t you accept then an immediate ground, you dismiss the petition, but with the leave to refile, saying what the reason is, rather than having to hold a hearing?

Mr. Melvin L. Wulf: If the district courts would do that explicitly in such a way that a pro se petitioner might be informed of the reason for the dismissal, I suppose that would be quite agreeable, but in the absence of that --

Justice Byron R. White: So it would be alright to view the --

Mr. Melvin L. Wulf: The only --

Justice Byron R. White: -- said we affirm, but without leave -- without prejudice to refiling, stating a reason?

Mr. Melvin L. Wulf: I might not argue against that very much, but that was not the position taken by the district court here of course.

He dismissed outright on the merits.

Justice Byron R. White: Well, of course he can always refile?

Mr. Melvin L. Wulf: He could, but he chose to take an appeal however.

Justice Byron R. White: No, but if --

Mr. Melvin L. Wulf: No, I --

Justice William J. Brennan: If there were an affirmance here, couldn’t you --

Mr. Melvin L. Wulf: I’m sorry?

Justice William J. Brennan: If there were an affirmance here, couldn’t you file it in 2255 in the form that you would have filed it, tomorrow?

Mr. Melvin L. Wulf: I think so Your Honor, yes.

Justice Thurgood Marshall: Mr. Wulf, where is this thing about his lawyer didn’t talk to him?

Mr. Melvin L. Wulf: It isn’t that his lawyer didn’t talk him, it was Your Honor was that, his lawyer raised the issue.

That’s on Page 8 of the record.

Justice Thurgood Marshall: Where?

Mr. Melvin L. Wulf: On top of Page 8 he alleges, petitioner avers that he has not waived nor abandoned his right to contest a grand jury array as set forth in Rule 12 (b).

Justice Thurgood Marshall: If ever there was a conclusion of the law that is, right?

Mr. Melvin L. Wulf: Right.

Justice Thurgood Marshall: No facts at all.

Mr. Melvin L. Wulf: Except insofar as waiver itself is a fact of --

Justice Thurgood Marshall: The waiver --

Mr. Melvin L. Wulf: He had a little legal knowledge which may have misled him in that sense.

Justice Thurgood Marshall: Well, you’ve been saying that your main point is that he knew what his rights were, but that his lawyer didn’t talk to him, and you used a phrase, lack of communication, well, where is that in this record?

Mr. Melvin L. Wulf: It’s not here explicitly.

It's here only --

Justice Thurgood Marshall: Where is any --

Mr. Melvin L. Wulf: Only insofar as it's -- that’s the implication in paragraph five of his petition.

Justice Thurgood Marshall: Paragraph five says that his lawyer didn’t come to him?

Mr. Melvin L. Wulf: No.

Paragraph five says he had not waived nor abandoned.

The implication of that could well be that his lawyer didn’t talk to him.

Chief Justice Warren E. Burger: Well, is that a pleading of a fact in your view?

Mr. Melvin L. Wulf: By a pro se petitioner it --

Chief Justice Warren E. Burger: Right.

Mr. Melvin L. Wulf: -- it might well be considered as an adequate pleading, I would think so.

He had some knowledge evidently about the waiver issue, was not totally uninformed on it, but I don’t know whether he knew what would constitute a waiver as a matter of fact, and I would think that it conclusionary pleading like this that is conclusory would -- ought to be taken by the district court as an adequate allegation.

Justice Thurgood Marshall: As set forth in the federal rules of criminal procedure, Rule 12 (b)?

Mr. Melvin L. Wulf: He either has some legal knowledge or he secured some while he is in the penitentiary.

This was filed while he was in prison.

Justice Thurgood Marshall: What I’m confused is to what this is all about?

Mr. Melvin L. Wulf: What this is all about --

Justice Thurgood Marshall: Is -- the man filed a piece of paper and says, one, I was tried and something was wrong with the jury.

Mr. Melvin L. Wulf: Well, it wasn’t all it was Mr. Justice Marshall.

It was a claim that Negroes were systematically excluded from the grand jury which indicted him.

And that’s no minor claim, that’s a very important claim.

And when that is alleged and where -- the additional facts are alleged even in conclusory terms that the defendant did not waive it, I think, and perhaps in addition, given the fact that this case arouse in Mississippi and given the history of the Fifth Circuit Court of Appeals’ decisions regarding state prisoners and their recognition of the special problem in the State of Mississippi regarding the exclusion of Blacks from juries, that this case demanded a hearing on the facts.

Justice William H. Rehnquist: But this was tried in a Federal Court, wasn’t it?

Mr. Melvin L. Wulf: This was tried in a Federal Court, yes sir.

But I don’t know -- and there is of course the distinctive treatment that the Fifth Circuit applies to state cases and to federal cases in the State of Mississippi.

They reversed a fair number, a large number of state cases on exclusion grounds on federal habeas, and on the other hand, in this case and in others, they have refused to allow such claims to be raised if they weren’t properly raised, timely raised under 12 (b) (2).

The implication being that they are not making the same kind of assumptions about the practice in Federal Courts as they very readily have made about the practice in state courts.

But that’s only an assumption, and again, a factual hearing would be necessary in order to find out exactly what the practices are in the Northern District of Mississippi.

And I might say that the affidavits which the government filed in some other case here, including the affidavits of 67 attorneys in -- from practicing in the Northern District of Mississippi mean nothing.

Those 67 affidavits with four exceptions are written in precisely the same terms and exactly the same language.

I think they are prepared by the U.S. Attorney’s Office and circulated through his friends in the Northern District.

And there's no allegations there except by lawyers, conclusionary allegations that significant numbers of Blacks have appeared on juries, but that's certainly not a any kind of a determination that ought to persuade any of us that the jury selection procedures in the Northern District are adequate.

Chief Justice Warren E. Burger: I think your time is up Mr. Wulf.

Mr. Melvin L. Wulf: Thank you.

Chief Justice Warren E. Burger: Mr. Korman.

Argument of Edward R. Korman

Mr. Edward R. Korman: Mr. Chief Justice and may it please the Court, the issue presented in this case is not as the petitioner alleges in his reply brief whether the right to grand jury indictment, whether this Court should assign the prohibition against racial discrimination in grand jury selection to the dustbin.

The issue rather is whether that right should be vindicated in the orderly procedure promulgated by this Court in Rule 12 (b) (2) and adopted by Congress, and that procedure is simply that the motion which does not go to the fairness of the trial, which does not go to the admissibility of any evidence at the trial, which does not go to the defendant’s guilt or innocence, but to a defect in the pretrial proceedings which can easily be cured if timely raised, whether such emotion should be raised prior to trial or years later after trial and conviction, when retrial may be difficult or impossible in a federal habeas corpus proceeding.

Now, I’d like to talk about Rule 12 (b) (2) for a while rather than the habeas corpus statute, because Rule 12 (b) (2) is not simply a procedure for making a motion prior to trial.

Rule 12 (b) (2) under the Enabling Act is the equivalent of a specific federal statute.

Under the terms of the Enabling Act, Rule 12 (b) (2) operates and in fact, to repeal any statute which is inconsistent with its provisions, and Rule 12 (b) (2) does not talk about knowing deliberate waivers.

It does not talk about waivers that are made only with consultations by the defendant’s lawyer, with his client.

Rule 12 (b) (2) says in plain terms that if you don’t make this motion, it shall be deemed waived.

This is really not a waiver in the general sense of the term, but really the equivalent of a statute of limitations.

Just as one's right to just compensation under the Fifth Amendment is not waived unless you have a knowing and deliberate waiver, that does not operate to make a statute of limitations which says you can only raise this claim for just compensation in three years or four years, unconstitutional.

Rule 12 (b) (2) has the same affect as an ordinary statute of limitations for the assertion of a particular constitutional right.

And the policy considerations which motivated the adoption of Rule 12(b) are rather plain.

There really is no incentive for a lawyer representing a defendant to make this kind of a motion before trial, because what does he get?

What would Mr. Davis’ lawyer would have gotten for him had he made this motion prior to trial and had he been successful?

He would have gotten from Mr. Davis a new indictment.

Mr. Davis would have stood trial, and by the way, it’s worth noting here that the defendant was caught in the act.

There isn’t a slightest question that any grand juror, Black or White, faithful to himself would have voted this indictment.

So he would have gotten simply a new indictment, and that’s true with many defects in the institution of the proceedings.

They are easily cured if you make the motion when you're supposed to make them.

On the other hand, there is a great incentive to sit back, say, why should I bother making this motion now, let me take my chances on an acquittal.

And if he’s found guilty, well, then I can go ahead and make the motion after trial and that’s just another way of upsetting a valid judgment of conviction.

Now, the statute despite the fact of Rule 12 (b) (2) thus has a reasonable justification.

It is not an absolute waiver provision.

It has an expressed clause that gives the judge the right to grant relief from the provisions of the waiver, from the waiver clause upon a showing of just cause.

No showing of just cause was made here, and that both courts below so found.

There was not a slightest doubt that this defect about which the petitioner complains could have been made and discovered with due diligence at the time.

And so that we have here a rule which is the equivalent of a federal statute and which takes precedence over anything to the contrary in the federal habeas corpus statute.

Having said that, let me say one more thing, that at the time Rule 12 (b) (2) was adopted, there was no conflict between Rule 12 (b) (2) and the federal habeas corpus statute in 1946.

It was well understood and it's settled law that if you didn’t comply with the procedural rule to raise an objection timely.

When you should have, you could not get federal habeas corpus relief, and as a matter, this Court so held in Daniels versus Allen decided in 1952 after the adoption of the federal rules.

To the extent that there is now any inconsistency between the federal habeas corpus statute and the provisions of Rule 12 (b) (2), it’s resulted because of a thorough reexamination of the language of the federal habeas corpus statute undertaken in Fay versus Noia.

No -- there is no similar basis for reinterpretation of Rule 12 (b) that the defendant asks for here.

Rule 12 (b), both the language of Rule 12 (b), the advisory committee notes, the notes of the preliminary draftsmen all indicate, (a) that it was intended to apply here, and (b) that it was intended to apply regardless of whether or not there was knowing and deliberate waiver.

Now, there are cases, state cases which are cited and Mr. Wulf has alluded to them in which the Fifth Circuit has granted habeas corpus relief to state prisoners.

Now, there are two things that I’d like to say about those cases.

First, any state procedural rule which is the equivalent of Rule 12 (b) and which is inconsistent with the habeas corpus statute would under the Supremacy Clause have to yield to those provisions.

As the Court noted in Fay versus Noia, state procedural rules must yield to the strong policy considerations which are reflected by the federal habeas corpus statute.

In this case, as far as this federal prisoner is concerned, the federal policy as stated by Rule 12 (b) (2), that was promulgated by this Court, that was adopted by Congress that it need not yield to the contrary under 18 U.S.C. 3771, it’s the habeas corpus statute which must yield.

In the second place, it wasn’t until last year in the case of which will be heard right after this one, that any Federal Court held that where the sole claim was to the grand jury and not the grand jury and the petit jury that this claim could be raised in a habeas corpus proceeding.

As a matter of fact, in Parker versus North Carolina reported at 397 U.S., decided long after Fay and after Kaufman, Mr. Justice White stated for the Court that the issue, whether the failure to comply with a procedural rule similar to Rule 12 (b) wasn’t -- could -- would stand as a bar to federal habeas corpus relief was still an open question.

Now, there are many reasons why that should stand as an open question.

Justice Byron R. White: But what if -- what would you say if there was an allegation in this case that are the other reason for not raising the matter and knowing -- and the -- to backup this claim of no waiver.

Let’s assume he alleged that he was threatened that if raised it he would be charged with something else?

Mr. Edward R. Korman: Well, I think under Rule 12 (b) the judge has wide discretion to grant relief from the waiver provisions, and if he gave -- if he came up with the reason that moved the Court to exercise this discretion.

Justice Byron R. White: What would be a good reason in your --

Mr. Edward R. Korman: I think the reason that Your Honor suggested.

I think another reason might be the failure -- the inability to have --

Justice Byron R. White: What about -- what about a reason that it would annoy the judge?

Mr. Edward R. Korman: I wouldn’t think that, that was an adequate reason.

Justice Byron R. White: You wouldn’t?

Mr. Edward R. Korman: No.

Justice Byron R. White: So what about the state cases in CA 5?

Mr. Edward R. Korman: Well, as I’ve indicated, all of the state cases until the most recent one, in Winters versus Cook, all involved claims with respect to both the grand and petit jury.

I’m willing to concede for these purposes that there is a -- that the claim of discrimination in the selection of the jury.

Now the petit jury as opposed to the grand jury involves different considerations that are based on the difference of the role of the grand jury and the jury (Voice Overlap) of criminal justice.

Justice Byron R. White: If made outside the presence of the jury?

Mr. Edward R. Korman: Pardon me?

Justice Byron R. White: If the objection is made outside the presence of the jury?

Mr. Edward R. Korman: No, what I’m saying is that the right is simply more significant and therefore before waiver is implied perhaps there might be a greater showing or less of a requirement that ought to be made in terms of explaining a waiver than in cases of grand juries.

I’m not conceding and I merely suggest that the two cases are not necessarily the same.

There are lots of times during --

Justice Byron R. White: So that you -- there should have been a hearing in this case if he had made an allegation of a sufficient reason?

Mr. Edward R. Korman: If it were sufficient on its face and it was not contradicted, I would assume that, that perhaps --

Justice Byron R. White: It was contradicted.

Mr. Edward R. Korman: If it was contradicted.

Justice Byron R. White: (Voice Overlap)

Mr. Edward R. Korman: Yes.

Now, there is the same strong policy considerations which we submit motivated and justify Rule 12 (b) would also and should also justify this Court, that a District Court denying habeas corpus relief even if there were no Rule 12 (b).

All of the cases that this Court has dealt with involved claims with respect to the fairness of the trial, for the admissibility of the evidence, and to claims which go ultimately to whether the person should be found guilty or not guilty.

The claim with respect to a grand jury stands on a much, much different level.

It does not involve any of those claims at all.

It involves simply the issue of whether this man should be indicted on the basis of a particular set of facts.

While the right to a grand jury of course is a significant important right, this Court has recognized the distinction on several occasions, that is the distinction between the petit jury and the grand jury.

In the first place, it is refused to hold that the right to a grand jury is so fundamental that the states must provide it under the Due Process Clause.

In Costello versus the United States, the issue was whether a defendant could obtain a review of the grand jury minutes to determine whether there was any evidence, any legally sufficient evidence at all to sustain the indictment, and this Court, in an unanimous opinions said no.

And Mr. Justice Black writing for the Court said, that in a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict.

Defendants are not entitled however to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.

Now, the right to a grand jury does not have anything to do with the right to a fair trial, and to permit it to be asserted years after a judgment of conviction, when retrial may be difficult or impossible, would have an undesirable effect on the entire criminal justice system as it's come to be recognized that the notion that there must come a time when judgments of conviction become final, when they are no longer subject, when issues which have nothing to do with guilt or innocence or with the fairness of the trial cannot be rehashed over and over again in a criminal proceeding.

And we submit that in this case the courts properly ruled that the claim was barred by Rule 12 (b) (2) and they properly denied habeas corpus relief.